United States v. Sealey

USCA1 Opinion













UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1614

UNITED STATES OF AMERICA,

Appellee,

v.

STEVEN SEALEY,

Defendant - Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, Senior U.S. District Judge]
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Before

Breyer,* Chief Judge,
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Torruella and Selya, Circuit Judges.
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Juliane Balliro, with whom Balliro, Mondano & Balliro, P.C.,
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was on brief for appellant.
Michael J. Pelgro, Assistant United States Attorney,
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Organized Crime Drug Enforcement Task Force, with whom Donald K.
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Stern, United States Attorney, was on brief for appellee.
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July 20, 1994
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* Chief Judge Stephen Breyer heard oral argument in this matter
but did not participate in the drafting or the issuance of the
panel's opinion. The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C. 46(d).














TORRUELLA, Circuit Judge. Defendant-appellant Steven
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Sealey was charged with a violation of 18 U.S.C. 922(g)(1).

Sealey filed a motion to suppress a firearm, a magazine, and

ammunition which Sealey discarded while he was being pursued by

Boston Police officers. The district court denied Sealey's

motion and, following trial, the jury returned a guilty verdict.

Sealey now appeals the district court's denial of his motion to

suppress. We affirm.

I. BACKGROUND
I. BACKGROUND
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A. Facts
A. Facts

We view the facts in the light most favorable to the

district court's ruling to the extent that they derive support

from the record and are not clearly erroneous. United States v.
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Maguire, 918 F.2d 254, 257 (1st Cir. 1990), cert. denied, 499
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U.S. 950 (1991); United States v. Aguirre, 839 F.2d 854, 857 (1st
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Cir. 1988).

On February 12, 1991, two individuals were robbed at

knifepoint by two black males. Two plainclothes Boston Police

Officers, William Donga and William Reynolds, arrived at the

scene, and then, with the two victims, drove around the area in

an unmarked cruiser, looking for the robbers. Shortly

thereafter, the police officers saw Sealey, a black male,

carrying a green trash bag over his shoulder. The victims did

not identify Sealey as one of the robbers. The officers,

however, recognized him from a previous arrest, and decided to

approach him.


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As the cruiser approached Sealey, Officer Reynolds

called out "Hey Steven, what's up?" Sealey then looked in the

direction of the officers and, without responding to the

officer's question, started to run away from the cruiser,

dropping the green trash bag as he ran.

Officer Donga then chased Sealey on foot. During the

pursuit, Sealey discarded a 9mm semi-automatic pistol, a

magazine, and ammunition. A police officer finally apprehended

Sealey, who was hiding behind a wooden stockade fence, and

arrested him. A federal grand jury subsequently returned an

indictment charging Sealey with being a felon-in-possession of a

handgun in violation of 18 U.S.C. 922(g).

B. The District Court's Ruling
B. The District Court's Ruling

On November 5, 1992, Sealey filed a motion to suppress

the physical evidence -- the firearm, magazine, and ammunition.

Sealey argued that he was seized when Officer Reynolds shouted

out to him from the cruiser and, because the officer lacked

reasonable suspicion to stop him, this seizure ran afoul of the

Fourth Amendment. Consequently, any evidence that was obtained

as a result of this improper seizure should be suppressed.

Following an evidentiary hearing, the court denied

Sealey's motion. The court found:

On these facts, supplemented by the
record at the evidentiary hearing, I
conclude the defendant was not "seized"
until he was finally caught by the
police. Accordingly, this case is
controlled by California v. Hodari, __
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U.S. __ , 111 S. Ct. 1547 (1991). There
is no showing that the defendant yielded

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to a "show of authority" let alone
physical force. The inquiry "Hey,
Steven, what's up?, unaccompanied by any
other demonstration or more forceful
verbal command is not an impermissible
intrusion by the police. Whether the
defendant ran from an unknown threat or
because he recognized the police, his
flight cannot be considered a "seizure"
by the police. The seizure took place
when the defendant was finally
apprehended, at which point the police
had a reasonable basis upon which to
detain him. See Terry v. Ohio, 392 U.S.
___ _____ ____
1, 27 (1968).

Sealey now challenges the court's denial of his motion to

suppress.

II. THE FOURTH AMENDMENT CLAIM
II. THE FOURTH AMENDMENT CLAIM
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The dispositive issue on appeal is whether or not the

police officers seized Sealey when Officer Reynolds shouted from

the cruiser, "Hey, Steven, what's up?"1 Sealey contends that

this "show of authority" effectively constituted a stop,

therefore triggering Fourth Amendment protections. The

government maintains that regardless of whether Officer Reynolds'

question constituted a "show of authority," there was no seizure

because Sealey ran from the officers and refused to submit to

Officer Reynold's inquiry.

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1 Sealey argues that Officer Reynolds shouted "[c]ome here, we
want to talk to you," as the officer got out of the cruiser.
Sealey maintains that it was this question and action which
incited him to run. The district court's factual finding that
Officer Reynolds asked "Hey, Steven, what's up?" is supported by
evidence in the record and the finding is not clearly erroneous.
See United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).
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Moreover, the resolution of this appeal in no way depends on the
precise words that Officer Reynolds uttered, and our decision to
affirm would be the same even if Officer Reynolds had asked
Sealey to come over to the cruiser.

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As a preliminary matter, we set forth the applicable

standard of review with respect to a motion to suppress. A

district court's findings of fact will only be disturbed if they

are clearly erroneous. United States v. Zapata, 18 F.3d 971, 975
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(1st Cir. 1994); United States v. Rodr guez-Morales, 929 F.2d
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780, 783 (1st Cir. (1991), cert. denied, 112 S. Ct. 868 (1992).
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This deferential standard is appropriate because the district

court has a superior sense of what actually transpired during an

incident by virtue of its ability to see and hear the witnesses

who have first hand knowledge of the events. Zapata, 18 F.3d at
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975; Rodr guez-Morales, 929 F.2d at 783. Questions of law,
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however, are subject to de novo review. Zapata, 18 F.3d at 975;
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Rodr guez-Morales, 929 F.2d at 783.
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In scrutinizing a district court's denial
of a suppression motion, the court of
appeals will review findings of fact for
clear error, while at the same time
subjecting the trial court's ultimate
constitutional conclusions to plenary
oversight.

Zapata, 18 F.3d at 975 (citations omitted).
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Under the Fourth Amendment, a seizure occurs when a

police officer, by means of physical force or a show of

authority, has in some way restrained the liberty of a citizen.

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). In United States v.
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Mendenhall, 446 U.S. 544, 554 (1980), a plurality first announced
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a test to determine if an individual's liberty had been

restrained: "a person has been 'seized' within the meaning of

the Fourth Amendment only if, in view of all of the circumstances


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surrounding the incident, a reasonable person would have believed

that he was not free to leave." The Supreme Court subsequently

embraced this analysis. See Michigan v. Chesternut, 486 U.S.
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567, 573 (1988); Immigration & Naturalization Services v.
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Delgado, 466 U.S. 210, 215 (1984). The Supreme Court later
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explained that a person's reasonable belief that he was not free

to leave was "a necessary, but not sufficient condition for
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seizure." California v. Hodari D., 499 U.S. 621, 628 (1991)
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(emphasis in original). The Supreme Court went on to hold that

with respect to a seizure based upon an officer's show of

authority, no seizure occurs until the suspect has submitted to

that authority. Id. at 626; see also Zapata, 18 F.3d at 976.
__ ________ ______

The facts of Hodari D. are analogous to the instant
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case. In Hodari D., a group of youths fled at the approach of an
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unmarked police car. 499 U.S. at 623. The police officers were

suspicious, and they gave chase. Id. The state conceded that
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the officers did not have the reasonable suspicion required to

justify stopping Hodari. Id. at 623 n.1. One officer followed
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the defendant, Hodari, and during the pursuit, Hodari tossed out

a "rock" of crack cocaine. Id. at 623. The officer then tackled
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Hodari, and handcuffed him. Id. In the juvenile proceedings
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brought against him, Hodari moved to suppress the evidence

relating to the cocaine, and the court denied the motion. Id.
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Hodari appealed and challenged the government's right to

introduce the evidence. The admissibility of the evidence turned

on whether the police seized Hodari at the moment the chase began


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or at the time of the tackle. The Supreme Court held that where

a suspect fails to submit to an officer's approach and runs away,

he is not seized until he is apprehended. Id. at 626. Hodari
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was therefore not seized until he was tackled, and the cocaine

was therefore admissible evidence.

Hodari D. controls the resolution of this appeal, and
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requires us to conclude that Sealey was not improperly seized

within the meaning of the Fourth Amendment. There is no

allegation that any police officer exerted physical force over

Sealey; rather, Sealey alleges that he was seized by virtue of

Officer Reynold's show of authority. Even if we assume that

Officer Reynolds' question to Sealey constituted a show of

authority, Sealey did not submit to this inquiry. Instead,

Sealey resisted Officer Reynolds, he ran away, and ignored any

authority that the officer manifested. While Officer Donga was

pursuing him, Sealey then discarded the firearm, the magazine and

the ammunition. A police officer finally caught Sealey hiding

behind a wooden fence, after he had discarded the contraband.

Pursuant to Hodari D., Sealey was not seized until he was caught
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hiding.2 Because the contraband discarded by Sealey while he


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2 Sealey does not challenge the district court's ruling that the
police had probable cause to arrest him after the chase. Such a
challenge would be to no avail. The situation rapidly escalated
from one involving a minimum of suspicion to one justifying
arrest based upon probable cause. By the time the police located
and apprehended Sealey, the police had probable cause to arrest
him for violating firearm laws. The officers observed Sealey
flee for no apparent reason, and Officer Donga observed Sealey
discard a gun during the chase. See, e.g., United States v.
___ ____ ______________
Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987).
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was running was not the fruit of this seizure, the act of

abandonment extinguished his Fourth Amendment claim. See Abel v.
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United States, 362 U.S. 217, 241 (1959) (a warrantless search or
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seizure of abandoned property is not a violation of the Fourth

Amendment); United States v. Lewis, 921 F.2d 1294, 1302 (D.C.
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Cir. 1990) (when an individual abandons property, he forfeits any

reasonable expectation of privacy in it, and consequently police

may search it without a warrant).

As an initial matter, Sealey appears to contend that

this case is controlled by Mendenhall. The argument is that when
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Officer Reynolds yelled to him, Sealey reasonably believed that

he was not free to leave, and the Fourth Amendment seizure should

therefore be deemed to have occurred at that point. This

argument, however, ignores the teaching of Hodari D., which
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stated that the Mendenhall reasonableness inquiry was a
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necessary, but not sufficient condition for seizure. Hodari D.
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made it clear that no Fourth Amendment seizure occurs until a

suspect submits to police authority.

Sealey also attempts to argue that his case is

distinguishable from Hodari D., and that case's "submission"
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requirement is not applicable to the circumstances of this case.

Sealey claims that when the police officers, who were dressed in

plainclothes, yelled to him from their unmarked cruiser, he did

not realize that they were police officers. Rather, he suspected

that they were private citizens out to get him. Sealey therefore

argues that the test to determine when a seizure occurs should be


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modified so that the seizure is deemed to occur at the moment

when the words and actions of the officers would have caused a

reasonable person to believe that his personal safety was in

jeopardy.

Sealey's argument, however, cuts against, not in favor,

of his position. A seizure is generally deemed to have occurred

when a defendant believes that his liberty has been interfered

with by virtue of a police officer's exertion of physical force

or show of authority. If Sealey ran away because he believed he

was being approached by private citizens, there is even less of a

case for a "seizure" taking place because Sealey would not be

acting in response to an officer's interference, or under the

belief that his liberty was restricted by governmental power.

Additionally, one of the necessary prerequisites for a seizure --

a reasonable belief by Sealey that he was not free to leave the

police officer's authority -- would be missing. Sealey's

argument is simply illogical.

To conclude, we believe that the court properly

determined that the police officers did not seize Sealey until

after he had fled, abandoned the contraband, and was finally

apprehended. Therefore, the firearm, the magazine and the

ammunition were not the fruit of an unconstitutional seizure, and

the court properly admitted the contraband into evidence.

For the foregoing reasons, we affirm the ruling of the
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district court.
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